Mens Rea- The right to present a defense, part one

 By Mike Nichols

Editor’s note: this is the first column called Mens Rea. This column focuses exclusively on criminal law. The intent of the column is to educate attorneys who practice criminal law whether the attorney practices exclusively in criminal defense, is a prosecutor or whether the attorney is a general practitioner.

  I often wonder when it was that many judges decided citizens’ accused of a crime had to prove something during a trial. After all, the judge tells the jury not once but twice during the instructions that the defendant does not have to do anything to be entitled to a verdict of not guilty.
  The prosecution opines, “it’s the defendant’s job to keep evidence out.” However, it seems like every time I submit a case and call witnesses, the prosecution often plays exactly that role.
  Not long ago, a trial court judge partially granted a prosecutor’s motion to exclude a client’s defense experts. In explaining to the government why she only partially shut down the citizen’s key witness, the court said, “the defendant has a right to present SOME defense.”
   The focus of this inaugural article is the right to present a defense. In other words, when the accused citizen chooses to submit a defense, does she have a right to present all, some or none of her defense?
  The Supreme Court of Michigan held that the accused has the right to present a meaningful defense.
  Justice Markman wrote a concurring opinion to the Court’s Order denying leave to appeal in People v Yost, 483 Mich 856 (2009).  Justice Markman wrote that a trial judge’s exclusion of a defense toxicologist because the defense failed to disclose the toxicologist at least 30 days before trial was improper.
   Justice Markman wrote that the sanction of excluding testimony for a discovery violation is an extreme remedy to be used only in the most egregious case (Yost at 856, citing People v Merritt, 396 Mich 67 (1976)). In this case, the toxicologist who the defense called was actually a substitute because the toxicologist the defense retained at the beginning of the case retired while trial was pending.
  Justice Markman stated that prejudice to the other side by the discovery violation was not established:
“In context, this discovery violation does not appear to be a most egregious case, given that defendant's original pathologist retired, thereby requiring that defense counsel obtain a new pathologist, Dr. Steven Cohle.”
  Dr. Cohle then opined that defendant's daughter may have ingested significantly fewer pills of Imipramine than both the prosecutor's experts and defendant's prior pathologist had estimated. Indeed, Dr. Cohle stated that defendant's daughter could have taken as few as 30 pills, which may not have been fatal and would provide additional support that her death was not the result of a homicide, but was instead due to a heart defect.
   Dr. Cohle recommended that defendant obtain an expert toxicologist to testify about the number of pills in her daughter's system, which triggered defendant's request to add Dr. Eisenga relatively shortly before trial.
  “Under these circumstances,” Justice Markman wrote, “I do not believe that defendant was attempting to ambush the prosecutor. Rather, it was not until the eve of trial that defense counsel realized that a toxicologist was needed to rebut the opinion of the prosecutor's experts that defendant's daughter had ingested up to 120 pills.
  “Further, the prosecutor had already secured a toxicologist who could have been used to refute Dr. Eisenga's testimony. Thus, it is unclear how the prosecutor would have been prejudiced, much less “severely” so, by the introduction of Dr. Eisenga's testimony,” Yost at 856.
  The  judge also kept out the testimony of two other defense witnesses for different reasons. One witness, the accused citizen’s psychologist, was excluded by the trial court when the prosecutor argued that the psychologist’s testimony was inadmissible because it was to support “diminished capacity.” Justice Markman stated that the trial court’s ruling to preclude the psychologist was improper.
  Justice Markman also wrote that it was actually the prosecutor who argued that the purpose of the psychologist’s testimony was to argue “diminished capacity,” but that the defense attorney proffered the psychologist merely as rebuttal to the prosecution’s theory and comment that the accused citizen reacted coldly and improperly to news of her daughter’s death as evidence of guilt.
  So, where are the lines drawn for the ability of a prosecutor to prevent an accused citizen from presenting a defense if she wants to in light of Yost and the other sources of law? What are the trial judge’s boundaries? That is where the next column will pick up.

  Michael J. Nichols focuses his practice exclusively on complex OWI/OWID cases and other select criminal and other litigation matters. He is the author of the Michigan OWI Handbook Published by West, chairs the Ingham County Bar Association Criminal Law section and is a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, The Criminal Defense Attorneys of Michigan and the State Bar and Ingham County Bar Association’s Criminal Law Sections.

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